Legal Article - Employment Law

The legal restriction on an employer’s ability to recruit applies equally during the selection process of candidates. During the interviewing stage of recruitment there are legal restrictions which employers must adhere to at all times.

Mainly, no words or actions must be used which indicate, or might be reasonably understood as indicating, an intention to discriminate on grounds of sex, marital status, colour, race, ethnic, national origin, nationality, membership or nonmembership of a trade union, disability or religion and politics.

The Equality Act 2010

The New Equality legislation comes into force on the 1st October 2010 and will affect the way you recruit personnel.

The Act introduces what it refers to as ‘Protected Characteristics’ (age, disability, gender reassignment, marriage and civil partnerships, pregnancy and maternity, race, religion or belief, sex, sexual orientation). These are the same as individual legislation now covers.

It will now be unlawful discrimination if:

• You treat a person differently just because of a protected character. This could include not interviewing a person because they are disabled, gay, pregnant or of ethnic origin.

• You must not do something to anyone which has a worse impact on them because they have a protected characteristic unless you can show that what you have done is objectively justified.

• You treat a disabled person unfavourably due to something connected to their disability which cannot be objectively justified. For instance the failure to consider a clinically obese person for a job is unfavourable treatment arising from disability.

• You treat a person worse than another because they are associated with a person who has a protected characteristic. For instance failing to give a job to an applicant because they have a disabled child.

• You incorrectly think they have a protected characteristic so do not appoint. For instance, you heard they were in a civil partnership and must therefore be gay.

• You harass them. For instance, telling jokes about their religion or beliefs during interview.

It will also be an offence if a disabled applicant asks for information about the job and requests an application form in an alternative format and you fail to provide it. This would be classed as a reasonable adjustment.

If an applicant needs reasonable adjustments to attend interview then you must make them but you do not have to appoint if they are not the best person for the job, even after taking into account any reasonable adjustments necessary to the job.

If after reasonable adjustments they are the best person then you must appoint.

Another area of vulnerability is asking questions about a person’s health and/or disability.

You are no longer permitted to ask an applicant any question about their health or disability until they have been offered the job. This includes their absence record.

This restriction applies to the application form and also at the interview.

The only exemption likely to be applicable is where you need to ask about health or disability to ensure that they are able to carry out a function that is essential to the job.

For instance, if they suffer from epilepsy when they have to work in an environment with flashing lights. In such circumstances you need to know whether they can carry out the function with reasonable adjustments in place.

The way forward will now be to ask applicants to send in a CV setting out their experience and ask for a covering letter stating why they would be suitable for the job. That way you need not ask about their health or disability and will only judge on skills.

NB: This is one of the most important changes to immediately affect employers. Remove health related questions from your application forms.

In addition, one extra important point is that The new Act outlaws terms which require pay secrecy among employees (but secrecy to outsiders is allowed).

The Rehabilitation of Offenders Act 1974

The Rehabilitation of Offenders Act 1974 provides that criminal convictions resulting in sentences of longer than 6 months but less than 2 ˝ years will be spent after a given period of rehabilitation.

The time required before a conviction is spent e.g. the rehabilitation period, varies depending on the nature and length of the punishment awarded.

For prison sentences of 6 months or less, the rehabilitation period is 7 years, those who receive a fine the period is 5 years. For sentences that result in 2 ˝ years or more imprisonment, there is no period of time where the conviction may be spent.

Where an applicant for employment, or the referee for an applicant for employment, is asked any question relating to spent convictions, offences, conduct or circumstances, he/she may refuse to answer these questions, or may “lie” about the circumstances, and in either case must not be placed under any legal restriction by so doing i.e. refused the job on that ground.

In other words, an employer may not under the Act, ask a prospective employee if he/she has “spent” convictions during recruitment.

The potential employer may ask if the individual has convictions, but the prospective employee is under no obligation to reveal “spent” convictions and may answer “no”.

For other convictions, job applicants or employees are under no general legal duty to voluntarily disclose such information unless they are specifically asked about their past criminal record.

However, where an employer directly questions an employee or job applicant about previous unspent convictions, a deliberately dishonest or evasive reply may subsequently constitute grounds for a fair dismissal or result in the applicant being unsuccessful.

Rehabilitation periods vary depending on the type and length of conviction originally incurred.

Sentence / Disposal

Rehabilitation Period for Adults (18 or over at the time of conviction)

Rehabilitation Period for Young People (under 18 at time of conviction)

Imprisonment or detention in a young offender institution for over 30 months (2 ˝ years)

Never Spent

Never Spent

Imprisonment or detention in a young offender institution over 6 months but not exceeding 30 months
2 ˝ years)

10 Years

5 Years

Imprisonment up to 6 months

7 Years

3 ˝ Years

Fine

5 Years

2 ˝ Years

Community Service

5 Years

2 ˝ Years

Conditional Discharge

The period of the order, or a minimum of 12 months (whichever is longer)

The period of the order, or a minimum of 12 months (whichever is longer)

Absolute Discharge

6 Months

6 Months

Conditional Caution

3 Months

3 Months

Simple Caution, Reprimand, Final Warning

Spent Immediately

Spent Immediately

Some sentences carry variable rehabilitation periods. The main ones are as follows:

Sentence / Disposal

Rehabilitation Period for Adults (18 or over at the time of conviction)

Rehabilitation Period for Young People (under 18 at time of conviction)

Imprisonment or detention in a young offender institution for over 30 months (2 ˝ years)

Never Spent

Never Spent

Imprisonment or detention in a young offender institution over 6 months but not exceeding 30 months
2 ˝ years)

10 Years

5 Years

Imprisonment up to 6 months

7 Years

3 ˝ Years

Fine

5 Years

2 ˝ Years

Community Service

5 Years

2 ˝ Years

Conditional Discharge

The period of the order, or a minimum of 12 months (whichever is longer)

The period of the order, or a minimum of 12 months (whichever is longer)

Absolute Discharge

6 Months

6 Months

Conditional Caution

3 Months

3 Months

Simple Caution, Reprimand, Final Warning

Spent Immediately

Spent Immediately

The rehabilitation periods given above may be reduced by half for a person under 17 at the time the sentence was passed.

Where a person is convicted as a young offender, certain other sentences may be passed.

The rehabilitation period runs from the date of sentencing.
A conviction cannot be spent under the Act if it incurred a sentence of more than 2 years in prison, preventative detention or their equivalent for young persons.

The Act does not apply to some occupations. In the retail motor industry this would apply to chartered accountants, certified accountants, solicitors, or nurses, although only the larger companies in the industry are likely to employ such people.

The Children and Young Persons Act: Management of Health and Safety at Work Regulations

This legislation prohibits the employment of children of school age, in the following circumstances:

i. Where the child is under 13 years of age

ii. Before the close of school hours on any day on which they are required to attend school

iii. For more than two hours on any day on which they are required to attend school

iv. Before 7 am or after 7 pm on any day

v. For more than 2 hours on any Sunday

vi. Where the job requires them to lift, carry or move anything so heavy as to be likely to cause injury to them.

vii. For more than 12 hours a week during term time

viii. For more than 5 hours ( 13- 14 year olds) or 8 hours (15 – 16 year olds) on Saturdays and during school holidays or weekdays.

ix. For more than 4 hours without taking a break of at least 1 hour.

x. In any occupation prohibited by local by-laws e.g. in an industrial setting or work that may be damaging to health, well being or education.

A permit to employ a child must be obtained from the local education authority, which will specify the employment conditions to be observed. Local authorities have the power to make bye-laws on the employment of children.

The majority of bye-laws currently permit children under 15 to work a maximum of 5 hours a day on Saturdays and school holidays, subject to a maximum of 25 hours per week, and children of 15 and over a maximum of 8 hours a day on Saturdays and school holidays, subject to a maximum of 35 hours per week.

These Acts do not apply to the employment of pupils in the last academic year of compulsory schooling or the preceding summer term where the employment is in accordance with arrangements made or approved by the local education authority with a view to providing work experience as part of their education.

A health and safety risk assessment must be carried out before taking on school age workers.

Employment Selection Process: The Do’s and Don’ts

To prevent discrimination in selecting applicants it is recommended that:

(i) employers should ensure that personnel staff, line managers and all other employees who may come into contact with job applicants, should be trained in the law, including the fact that it is unlawful to instruct or put pressure on others to discriminate;

(ii) applications from men and women etc should be processed in exactly the same way. For example, there should not be separate lists of male and female or married and single applicants. All those handling applications and conducting interviews should be trained in the avoidance of unlawful discrimination and records of interviews kept, where practicable, showing why applicants were or were not appointed:

(iii) questions should relate to the employment requirements of the job. Where it is necessary to assess whether personal circumstances will affect performance of the job (for example, where it involves unsocial hours or extensive travel) this should be discussed objectively without detailed questions based on assumptions about marital status, children and domestic obligations.

Questions about marriage plans or family intentions should not be asked, as they could be construed as showing bias against women. Information necessary for personnel records can be collected after a job offer has been made.

Job application forms should not contain discriminatory questions. Some questions on application forms could be unlawful, irrespective of how the answers are used or interpreted, if:

(i) they are asked only of women or men or different nationalities, or trade union members etc, and

(ii) it can be shown that the asking of them constitutes “less favourable treatment”.
It is not necessarily true that asking the same questions of all applicants ensures non-discrimination.

The use of the information may still be discriminatory.

Examples of questions on application forms, which would, or might, discriminate on grounds of sex or marriage, for example are as follows:

During the selection interview the interviewer must be particularly careful not to treat people of different sex, race etc less favourably than other people.

Candidates must be assessed solely on their qualifications, relevant knowledge, experience and personal qualities. In the case of sex discrimination the following advice should be followed.

Criteria adopted for the assessment of candidates should not discriminate indirectly against women, e.g. length of experience in particular types of work, which women may not have had because their working lives have been interrupted by periods of domestic responsibility.

Subtle and unconscious discrimination can result from general assumptions about women’s capabilities, characteristics and motivation.

For example, preconceptions about their ability to supervise men. In judging personal qualities by reference to leisure interests, it is important to remember that many women have less opportunity for these than men because they combine work with domestic responsibilities.

Other dangers are preconceptions about what are ‘men’s jobs’ and what are ‘women’s jobs’ and stereotypes of the kinds of work, which are suitable for men and women.

Avoid asking women candidate’s questions such as:

• Any intention of getting married?
• Any plans for a family?
• How would you, as the boss, feel if you were the only women in all-male office?

If the decision not to appoint a candidate was based upon answers to these kinds of questions then you may have discriminated unlawfully.

If the question is not intended to influence your decision in any way, then there is no point in asking for this information as it will lead applicants to suspect you of having an intention to discriminate, which in turn could lead to a complaint against you.

If in doubt ask yourself whether you would put the same question to a man, and if so, whether it can be justified.

Questions, which are relevant to the job – for example, about candidates’ ability to undertake shift work – should be asked for both men and women.

Similarly, if mobility is involved, both men and women may be asked about it in relation to the demands of the job. You should make not unwarranted assumptions or enquiries about the future mobility of any candidates based on hypothetical circumstances.

Preventing Discrimination during Recruitment

In respect of special permissions for migrant workers, the best way to ensure you do not discriminate racially is to treat all applicants in the same way at each stage of the recruitment process.

You may ask for a document at any stage, but if you ask for a document from one applicant make sure you ask for one from all applicants being considered at that stage.

You may find it most convenient to ask for a document from all those called to a first interview, or just from those called to a second interview, or only from the person chosen to fill the vacancy.

If you ask applicants to complete an application form you could ask them at that stage whether they would be able to produce one of the documents which fulfil the necessary requirements.

It is necessary to keep a record of a document seen. It is not appropriate to retain original documents belonging to an employee unnecessarily unless the employment is for a very short duration i.e. a day or less, and there are facilities for keeping the document safe during the period.

Normally the full document should be copied. However, if a passport or other travel document is being copied, only the

• front cover and any pages giving personal details bearing a photograph of the holder of the passport or showing the nature of the bearer.

• the page showing the endorsement, which confirms that, the holder of the passport is currently permitted to work needs to be copied. The potential employee could be asked to obtain photocopies, but any copy should be compared with the original document.

The employer must decide whether a document appears to relate to a person. This is a matter of individual judgement, but if a document includes a photograph it may be obvious that it relates to the person who possesses the document.

In considering whether those documents which do not include a photograph relate to the person you may wish to consider whether the information on the document is accurate in comparison to other information about the application which is available to you.

If there appears to be some inconsistency you will probably want to ask the person for an explanation.

Duplicate documents should be kept while the employee is employed and for at least six months after they have left the employment.

If the original document is retained because the employment is for a day or less and then returned to the employee, the six-month period does not apply.

Part 2 of the P45 must, as at present, be retained for at least three years in order to comply with Inland Revenue regulations.

Once a relevant document has been checked and copied where necessary before taking on a new employee, there is no requirement for an employer to do anything else, even if a person’s permission to be in the UK is not yet permanent.

If someone cannot produce one of the required documents the employer should not take that person on, as there will be no protection against conviction if the person is not entitled to work.

People who appear to be British (e.g. white Anglo-Saxon) should not be employed if they do not have documentation if other applicants are not employed on that basis. Otherwise racial discrimination may occur.

If there are any doubts about whether a document seen will provide a defence the Government has established a special helpline facility.
The helpline does not give personal information about an individual, nor provide advice on matters relating to employment law, work permits or the avoidance of racial discrimination.

Home Office Border and Immigration Agency Advice (BIA) 2005

The BIA’s good practice recommendations for preventing racial discrimination occurring when applying the Immigration, Asylum and Nationality Act are as follows:

As a matter of good employment practice, you should have clear written procedures for the recruitment and selection of all staff, based on equal and fair treatment of all applicants. Copies of these procedures should be made available to all relevant staff.

All job selections should be on the basis of suitability for the post. You should ensure that no prospective job applicants are discouraged or excluded, either directly or indirectly, because of their personal appearance or accent. You should not make assumptions about a person’s right to work or immigration status on the basis of their colour, race, nationality, or ethnic or national origins, or the length of time they have been resident in the UK.

The best way to ensure that you do not discriminate is to treat all applicants in the same way at each stage of the recruitment process. For example, if you provide information to prospective applicants, or if you supply an application form, you could also include a reminder that the successful applicant or short listed applicants, will be required to produce an original document or documents included in List A or List B.

You may ask applicants to provide the specified document(s) to obtain a statutory excuse at any stage before they start work. Depending on your recruitment processes, you may find it most convenient to request documents from all those called to a first interview or just from those called to a second interview, or only from persons short-listed to fill the vacancy. Original documents should be checked before employment commences. If you ask for documents from applicant, you should make sure you ask for documents from all applicants being considered at that stage.

Job applicants should not be treated less favourably if they produce a document or documents from List B rather than List A. A person producing document(s) from List B will have a time limit on their legal ability to stay and work in the UK, but it is possible for certain catergories of entrant to obtain an extension to their entitlement to remain and work in this country.

Once a person who has limited leave to remain has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment, including the terms of employment provided, opportunities for training, promotion or transfer, benefits, facilities or services of by dismissing the worker or subjecting them to some other detriment, other than the repeat checks.

You should only ask questions about an applicant’s or employee’s immigration status, where necessary, to determine whether their status imposes limitations on eh number of hours they are entitled to work each week, or on the length of time they are permitted to work within their overall period or type of leave given. For example, those granted leave as students undertaking full-time undergraduate study in the UK should not work for more than 20 hours per week during term time, except where the placement is a necessary part of their studies and is undertaken with the educational institution’s express agreement.

If a person is not able to produce the appropriate listed document(s), you should not assume that he or she is living or working in the UK illegally. You should instead refer the person to the Border and Immigration Agency through the Immigration Enquiry Bureau on 0870 606 7766, or a Citizens Advice Bureau for advice. You should try to keep the job open for as long as possible, but you are not obliged to do so if you need to recruit someone urgently.

It is ultimately the decision of the employer whether or not to employ an individual.